Ahmad Fairuz’ failure to institute judicial reforms, particularly on
transparency and meaningful consultation in judicial appointments,
root-cause of the constitutional crisis resulting in seven-month vacancy of
Chief Judge of Malaya, third most important judicial office

________________Media
Statementby Lim Kit Siang
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(Parliament,
Saturday):The country is faced with a
full-blown constitutional crisis over the appointment of the third most
important judicial office in the land, the Chief Judge of Malaya, which
had been vacant for more than seven months since the retirement of Tan Sri
Siti Normah Yaakob on January 5, 2007.

I first raised the issue of
the paralysis of the judicial appointment process for the post of the Chief
Judge of Malaya in Parliament during the Royal Address debate in March, and
DAP MPs Karpal Singh (Bukit Glugor) and M. Kulasegaran (Ipoh Barat) and I
have continued to demand to know why the country is still without a Chief
Judge of Malaya whenever there was an opportunity in Parliament in the past
five months but without getting any satisfactory answer.

Under Article 122B of the
Constitution, the Chief Judge of Malaya “shall be appointed by the Yang
di-Pertuan Agong, acting on the advice of the Prime Minister, after
consulting the Conference Rulers”.

The appointment of the new
Chief Judge of Malaya has not been able to get past the Conference of Rulers
which have met twice since the retirement of Siti Normah, reflecting the
constitutional crisis over the issue.

When the Prime Minister, Datuk
Seri Abdullah Ahmad Badawi, who did not attend the recent Conference of
Rulers held at the end of last month as he was on private holidays overseas,
was asked about the issue on his return, Abdullah said “he had proposed a
candidate and it was now for the Chief Justice to conclude the appointment”.
(NST 29.7.07)

After the Singapore Straits
Times reported that the Conference of Rulers at its meeting last month had
rejected the government’s nominee, New Straits Times quoted Chief Justice
Tun Ahmad Fairuz Sheikh Abdul Halim as saying that the the vacancy for the
Chief Judge of Malaya is expected to be filled by August 31 and that the
identity of the nominee was classified under the Official Secrets Act.

Although Ahmad Fairuz has
denied that he had said that the appointment would be made by August 31, I
understand that this statement by the Chief Justice is recorded on tape.

But the more important issue
is why should the Chief Justice invoke the Official Secrets Act to suppress
all reports referring to the official nominee for the post of Chief Judge of
Malaya, whom I understand is one of the most junior Federal Court judges –
as if such a nomination cannot withstand public scrutiny.

When he was appointed Chief
Justice in March 2003, I said his greatest challenge was “whether he could
institute the structural judicial reforms to fully restore public
confidence in the independence, impartiality and integrity of the judiciary
– and one important issue is the system of appointment of judges”, as
“Malaysia urgently needs a more transparent process of judicial
appointment to ensure that the justice administered by the judges is of
superior quality because they are professionally qualified, persons of
integrity and good character, independent and courageous”.

I called at the time, which I
subsequently reiterated in Parliament, for addressing the flaws of the
existing unsatisfactory system, where the judicial appointments are decided
by two persons, the Prime Minister and the Chief Justice, viz:

Selection and appointment
procedure not transparent;

Consultative process is
secretive; and

There is a lack of appraisal of
the candidates against pre-determined criteria

If Ahmad Fairuz had undertaken
judicial reforms to introduce the principles of accountability,
transparency, meritocracy and integrity for judicial appointments before
involving the Prime Minister and the Conference of Rulers - which many
Commonwealth countries have already carried out in their reforms to
modernize their system of justice - the present constitutional crisis and
impasse of seven-month vacancy for the post of Chief Judge of Malaya would
have been averted.

Yesterday, Ahmad Fairuz said
the Prime Minister Datuk Seri Abdullah Ahmad Badawi had the final say on the
appointment of the Chief Judge of Malaya.

He said the Federal
Constitution stipulated that the Prime Minister consulted him (Chief
Justice), while the Yang di-Pertuan Agong consulted the Conference of Rulers
on the appointment.

He said the opinion of the
King and the Conference of Rulers are not binding on the Prime Minister.

He said: “The ultimate decider
is still the Prime Minister because the King acts on the advice of the Prime
Minister.”

I agree that legally and
constitutionally, the Conference of Rulers has no right to veto the choice
of the Prime Minister on the candidate for the Chief Judge of Malaya.

However, the consultation
process in the judicial appointments, whether in the case of the Chief
Justice by the Prime Minister, or the Conference of Rulers by the Yang
di-Pertuan Agong, must be a full, proper and meaningful process and not just
a matter of formality with no meaning or purpose whatsoever.

When consulted, the Conference
of Rulers is duty-bound to give full and weighty consideration to the
subjects raised, including bringing up grave doubts or reservations or even
asking for reconsideration of the original proposal if there are very good,
valid and powerful grounds.

Just to give an example.
Recently, Malaysians have been shocked by series of scandals highlighting a
deplorable plunge in standards and performance in all departments pertaining
to the administration of justice – whether sloppy investigation, sloppy
prosecution and even sloppy judicial conduct.

New Straits Times in a
front-page report on 23rd July 2007 “JUDGES FAIL WRITTEN TEST” exposed the
numerous horror stories of miscarriage of justice such as the accused
languishing in prison just because judges did not provide written judgments
and referred to one Federal Court judge with “at least 30 outstanding
judgments accumulated from his High Court days that include drug trafficking
and murder cases”.

Hypothetically, if this
particular Federal Court judge is nominated for the office of Chief Judge
Malaya, the Conference of Rulers would not only be duty-bound but would have
very strong and powerful grounds to raise objections and ask for the reasons
for proposing such a nominee and even to ask for a reconsideration by the
Prime Minister if the “consultation” process stipulated by Article 122B of
the Constitution is to be meaningful at all.

The Prime Minister should
inform Parliament by way of a Ministerial statement when it reconvenes on
August 27 the background and reasons for the constitutional impasse with the
Conference of Rulers over the appointment of the Chief Judge of Malaya and
how he proposes to resolve it, fully in line with the principles of
accountability, transparency, integrity and good governance.